November 26, 2004

Medical-Pot Fight Goes to Justices

by ssavage

Angel Raich, a 39-year-old mother of two, smokes marijuana eight times a day in her Oakland home.

She does it to relieve pain from a brain tumor and more than a dozen other maladies. And she does it with her doctor's blessing and the permission of the state of California, which allows medical patients to use the otherwise illegal weed if recommended by a physician.

Since 1996, California and 11 other states have passed laws that ease or eliminate sanctions for the medicinal use of pot. But the federal government says it still has the right to prosecute Raich and patients like her because federal law considers pot a harmful drug without proven medical benefits.

On Monday, in a lawsuit brought by Raich and another patient, the U.S. Supreme Court takes up a question that a growing number of medical marijuana users say is critical to their physical well-being and that the federal government says is important to its war against illegal drugs: When it comes to pot and patients, does federal or state law rule?

'Couldn't go on' without it

''I understand that my case brings up an interesting point of law that fascinates judges and lawyers,'' says Raich, whose husband, Robert, is one of the lawyers on her case. ''But for me, it's a matter of life and death. With cannabis, I can play with my kids, walk without a wheelchair, sometimes even get a few hours sleep at night. Without it, I couldn't go on for very long.''

Despite a drug war waged by the Bush administration and the Clinton administration before it, marijuana remains a big illegal business. In 2000, Americans bought about $10.5 billion worth of marijuana from drug dealers, according to an estimate by the Office of National Drug Control Policy. Last year, the FBI recorded 755,286 marijuana arrests -- an all-time high. Most arrests were for simple possession.

California voters approved the state's ''compassionate use'' act by voting in 1996 to keep marijuana illegal except for patients under a doctor's care. Raich, a self-described ''proper conservative mom,'' tried pot a year later at the suggestion of a nurse. According to papers filed by Raich's physician in her Supreme Court case, Raich suffers from scoliosis, severe chronic pain, joint dysfunction, endometriosis, fibromyalgia, non-epileptic seizures, an inoperable brain tumor, a uterine fibroid tumor and post-traumatic stress disorder, among other ailments.

Raich smokes marijuana in a pipe, eats it with her food and applies it to her body as a salve at the rate of 3 ounces a week. She says it curtails pain, eases breathing and has improved joint function. Synthetic forms of marijuana, which are permitted by federal law, are ineffective, Raich says. That's a common complaint of medical marijuana users.

The Clinton administration refused to recognize California's law and moved to shut down cooperatives that were set up in Oakland and other communities to grow and distribute pot to patients. Cases challenging that action are moving through federal courts.

The Bush administration went further, however, and conducted raids to destroy marijuana grown for use by patients. In August 2002 in Oroville, Calif., a local district attorney blocked attempts by federal agents to destroy marijuana plants before the U.S. Justice Department ordered him to step aside. The owner of the plants, Diane Monson, a spinal-disease sufferer, joined Raich in filing suit to block the federal government from enforcing federal marijuana laws against California patients.

The medical marijuana users lost in U.S. District Court but won in the U.S. Court of Appeals for the 9th Circuit, based in San Francisco. In a 2-1 decision, the appeals court found that using federal drug law to trump California's medical pot provision is an overreach that is ''likely unconstitutional.''

In briefs filed with the Supreme Court, the Justice Department argues that the wording in the Constitution that allows the federal government to regulate interstate commerce permits it to trump any state law that permits drug use. Pot grown in California for local use must be considered to be interstate commerce, acting Solicitor General Paul Clement says. Locally grown drugs can readily enter the interstate market and cannot be differentiated from drugs produced for drug dealers, he says. Allowing the federal government to criminalize locally grown pot is vital to control illicit trafficking, Clement argues.

Opponents of legalized marijuana have joined the case by filing briefs that support the government. The Drug Free America Foundation notes that under federal law, marijuana -- like heroin and Ecstasy -- is a drug with ''no currently accepted medical use.''

'Trojan horse'

The foundation argues that the concept of medical marijuana is a ''Trojan horse'' that could open the way to making all pot legal by exploiting public sympathy for the sick. Raw marijuana, the foundation's brief says, is not an approved medicine. It is a dangerous drug with ''proven negative effects'' on users, including disease sufferers.

Lawyers for Raich and Monson counter that growing pot locally for a patient's own medicinal use is not an economic activity that the Constitution's commerce clause covers. Attorney Robert Long cites several opinions that indicate marijuana has been found to be an effective medicine in some cases.

Quoting from a 1992 case that upheld a federal right to abortion, Long writes that suffering by marijuana users ''is too intimate and personal for the (federal government) to insist . . . upon its own vision.''

The case could put conservatives on the Supreme Court on the spot. Since the mid-1990s, Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas have trimmed federal attempts to enter areas, such as gun regulation and pornography, that traditionally have been covered by state or local ordinances.

But to do so in this case, notes Kermit Roosevelt, law professor at the University of Pennsylvania, would place the conservatives on the side of pot smoking.

Rory Little, a former federal prosecutor who teaches at the University of California's Hastings College of Law in San Francisco, says it ''will be tough'' for the medical marijuana side to overcome a 62-year-old Supreme Court precedent. In a 1942 case, an Ohio farmer growing wheat for his own use was deemed to be participating in interstate commerce -- and therefore subject to federal controls.